Essay

Supreme Court and Hindutva

Print edition : February 07, 2014

Justice J.S. Verma, former Chief Justice of India, who delivered the controversial Hindutva judgment in 1995. Photo: v. sudershan

V.D. Savarkar. In his essay "Hindutva", Savarkar said: "Hindutva is not identical with Hindu Dharma." Photo: the hindu archives

It is 18 years since Justice J.S. Verma delivered his flawed judgment on Hindutva, but no Chief Justice of India has thought it fit to constitute a larger Bench to settle the issue authoritatively.

THE Bharatiya Janata Party (BJP) triumphantly asserted in its election manifesto in 1996 that “the Supreme Court, too, finally, endorsed the true meaning and content of Hindutva as being consistent with the true meaning and definition of secularism” (emphasis added, throughout). That was a lie. Repeated ad nauseum, it spread. “The Hindutva judgment” was delivered by Justice J.S. Verma on behalf of himself and Justices N.P. Singh and K. Venkatasami on December 11, 1995 ( Dr Ramesh Prabhoo vs Prabhakar K. Kunte [1996] 1 Supreme Court Cases 130; Manohar Joshi’s case is on page 169).

This Bench had studiously ignored an earlier ruling by the Supreme Court to the contrary. It was delivered only five months earlier on July 14, 1995, by Justices G.N. Ray and Faizen Uddin ( Dr Das Rao Deshmukh vs Kamal Kishore Nanasaheb & Ors [1995] 5 SCC 123). Justice Verma’s essay on Hindutva met its just deserts four months later, on April 16, 1996, by another three-member Bench comprising Justices K. Ramaswamy, S.P. Bharucha and K.S. Panipoopooman ( Abhiram Singh vs C.D. Commachen & Ors [1996] 3 SCC 665). It cited earlier rulings and said: “As stated earlier, when and under what circumstances, speeches of the leaders of the political party or the appeal of any other person with the consent by a candidate or his election agent to vote or refrain from voting on the ground of religion, race, caste or community or language, etc. or promotion or an attempt to promote feelings of enmity or hatred between different classes of citizens of India on the ground of religion, race, caste, community or language with the consent of the candidate or his candidate or prejudicially affect the election of any candidate, constitutes corrupt practice under subsections (3) or (3-A) of Section 123 [of the Representation of the People Act, 1951]. Its content and scope also require to be clearly laid down authoritatively lest miscarriage of justice in the interpretation of ‘corrupt practice’ involved in every election petition would ensue. The purity of election process gets fouled and [sic, becomes] fraught with deleterious effect in a democratic polity.

“Thus, without expressing any opinion on these questions, we are of the view that the entire case requires to be heard and decided by a larger Bench of five judges since the decision thereon impinges upon the purity of the election process and requires to be decided authoritatively. We, therefore, direct the Registry to place the case before our learned brother, the Chief Justice, for constituting a larger Bench of five judges, and, if possible, at an early date so that all the questions arising in the present appeal could be decided authoritatively and expeditiously.”

Two features deserve note. On April 16, 1996, three judges of the Supreme Court carefully noted the conflicting rulings and urged that the case be placed before the Chief Justice of India “for constituting a larger Bench of five judges, and, if possible, at an early date so that all the questions arising in the present appeal could be decided authoritatively and expeditiously”. In the absence of a ruling by the Bench of five judges, Justice Verma’s ruling is not authoritative let alone final. The judges urged despatch with a strong sense of urgency. Nearly 18 years have elapsed and not one of the Chief Justices of India who served since 1996 thought it fit to constitute a larger Bench to settle the issue authoritatively.

The reference was not to be confined to the narrow issue of a candidate’s responsibility for the speeches of his party leaders. The “content and scope” of the relevant provisions of Section 123 (3) and 3A (penalising communal propaganda) are also referred to the larger Bench “lest miscarriage of justice in interpretation of ‘corrupt practice’… would ensue” (page 671, paragraph 12). This Bench’s disquiet at Justice Verma’s ruling is manifest.

Read what the first judgment had to say on Hindutva.

“It has been very strenuously contended by learned counsel for the appellant that appeal to vote for ‘Hindutva’ should not be confused with appeal to vote only for a member of one community, namely the Hindus. Criticism of partisan treatment meted out to the Hindus by the ruling Congress party or appeasement policy in favour of one community or followers of a particular religion impairing national integrity and appeal to oppose such improper and anti-national policy should not be held to be an appeal to vote only on the basis of a particular religion. It has been contended that the thrust of the speeches was that unequal treatment meted out to Hindus and deliberate hurting of sentiments of Hindus have encouraged divisive forces and anti-national elements in the country and Hindus should be aware of such divisive forces and try to unite against such divisive and anti-national forces in selecting proper candidates who would safeguard the unity and integrity of the country. In our view, it is not necessary to consider the philosophy of Hindu religion and its tenets of tolerance and respect for different religious faiths for the purpose of appreciating whether appeal was really made for Hindutva which is something different from outward practices and some of the following professed by followers of Hindu religion” (1995) 5 SCC 123 on page 138. These judges contrasted in bold relief “Hindu religion” with its tenets of tolerance with “Hindutva which is something different from outward practices and some of the followings professed by followers of Hindu religion”.

‘Hindutva is different’

That Justice Verma studiously ignored this relevant precedent is the least of the blemishes of his judgment. Shockingly, he ignored also the Bible of Hindutva, V.D. Savarkar’s essay “Hindutva”. A staunch atheist, he did not believe in the Hindu religion and its practices. Hence, his strident warning at the very beginning of Hindutva. The very heading of this part (page 3) was: “Hindutva is different from Hinduism”. The difference is laid bare on the very next page (4). “Here it is enough to point out that Hindutva is not identical with what is vaguely indicated by the term Hinduism. By an ‘ism’ it is generally meant a theory or a code more or less based on spiritual or religious dogma or system. But when we attempt to investigate into the essential significance of Hindutva we do not primarily—and certainly not mainly—concern ourselves with any particularly theocratic or religious dogma or creed.”

Towards the end, Savarkar wrote: “There would have been no serious objection raised against the cultural aspect of Hindutva too, but for the unfortunate misunderstanding that owes its origin to the confusing similarity between the two terms Hindutva and Hinduism. We have tried already to draw a clear line of demarcation between the two conceptions and protested against the wrong use of the word Hinduism to denote the Sanatan Dharma alone. Hindutva is not identical with Hindu Dharma.”

S.S. Savarkar, its publisher, wrote: “Apart from the religious aspect involved in the conception of the words ‘Hindu’ and ‘Hinduism’, Veer Savarkar had to coin some new words such as ‘Hindutva’, ‘Hinduness’, ‘Hindudom’ in order to express totality of the cultural, historical, and, above all, the national aspects along with the religious one, which mark out the Hindu People as a whole. The definition is not consequently meant to be a definition of Hindu Dharma, or Hindu religion.”

A student tasked with writing an essay on Hindutva would have earned severe censure if he had ignored Savarkar’s book and relied instead on another’s writing; one which had no relevance, and misquoted it to mean something altogether opposite to what that writer meant. Missing in the entire judgment is any reference to Hindutva by its author, who was also author of the new term he had “coined”—V.D. Savarkar.

Absurd conclusion

Instead, Justice Verma relied on an altogether different work and distorted its meaning. “Ordinarily, Hindutva is understood as a way of life or a state of mind and it is not to be equated with, or understood as religious Hindu fundamentalism. In Indian Muslims: The Need For A Positive Outlook by Maulana Wahiduddin Khan (1994), it is said (on page 19): ‘The strategy worked out to solve the minorities problem was, although differently worded, that of Hindutva or Indianisation. This strategy, briefly stated, aims at developing a uniform culture by obliterating the differences between all of the cultures coexisting in the country. This was felt to be the way to communal harmony and national unity. It was thought that this would put an end once and for all to the minorities’ problem’.’’

From this quotation he jumped to this absurd conclusion: “The above opinion indicates that the word ‘Hindutva’ is used and understood as a synonym of ‘Indianisation’, i.e., development of uniform culture by obliterating the differences between all the cultures coexisting in the country.”

Far from supporting the learned judge’s conclusion, the quote refutes it thoroughly. It was not in praise of Hindutva or its euphemism “Indianisation” but in their censure. The paragraph preceding it lamented that Hindus did not treat the partition as “just an incident in past history”. The subsequent strategy “to solve the minorities problem”, through Hindutva or Indianisation, sought to impose “a uniform culture by obliterating the differences between all of the cultures coexisiting in the country”. Unlike Justice Verma who quotes this to imply approval of this process, the Maulana strongly disapproved of it. He is for the coexistence of “all of the cultures” in our diverse land.

This becomes all too clear from the very next sentence after his comment that it was thought that the obliteration would end the minorities problem. That sentence reads: “However beautiful this suggestion may appear to be, it is certainly impracticable.” Justice Verma does not note this sentence at all. In any newspaper article, let alone a scholarly essay, this would have invited strong censure. This is not the only judgment in which Justice Verma played around with a quotation. His majority judgment in the Ayodhya case reeks of this flaw.

Indianisation

As for Indianisation, the Standing Committee of the National Integration Council (NIC) adopted a statement, on October 16, 1969, which said: “We condemn the spread of the idea that any community requires to be Indianised….” An All-Party Conference was convened under its auspices on November 3, 1969, with Prime Minister Indira Gandhi in the chair. It denounced Indianisation. The Jan Sangh alone opted out. Indianisation was a subterfuge.

Nor is that all. The two rulings of a Constitution Bench quoted by Justice Verma to support his views are of equal irrelevance. One was a case decided in 1966 concerning the applicability of the Bombay Hindu Places of Public Worship Act ,1956, to the Swaminarayana Sampradaya Satsanghis. Chief Justice P.B. Gajendragadkar’s elaborate discussion on “who are the Hindus and what are the broad features of Hindu religion”, which he conducted with obvious relish, was in this context. He dwelt on “the life and career of Swaminarayana” and held that the sect he founded “is not a religion distinct and separate from Hindu religion”. Ergo, the Act applied ( Sastri Yagnapurushdasji vs Muldas Bhudardas Vaishya, AIR 1966 SC 1119).

A decade later, the same issue arose in a case under the Wealth Tax, Income Tax and Expenditure Tax Acts. A Hindu had married a Christian woman after a partition of his joint family had taken place. Was their son a Hindu? Under the four codifying Acts on Hindu Marriage, Succession, Minority and Adoption and Maintenance, any child one of whose parents is a Hindu by religion and who is brought up as a Hindu is a Hindu, the court noted. It also considered generally what the word Hindu denotes ( CWT vs R. Sridharan [1976], 4 SCC 489).

In neither case was the obnoxious term Hindutva used, only Hinduism was. That did not deter Justice Verma from asserting: “These Constitution Bench decisions, after a detailed discussion, indicate that no precise meaning can be ascribed to the terms ‘Hindu’, ‘Hindutva’ and ‘Hinduism’, and no meaning in the abstract can confine it to the narrow limits of religion alone, excluding the content of Indian culture and heritage. It is also indicated that the term ‘Hindutva’ is related more to the way of life of the people in the subcontinent…” Contrary to Justice Verma’s assertion neither judgment “indicated” that Hindutva was related to the way of life. That is his gratuitous gloss; for the judgments did not refer to “Hindutva” at all.

Verma added: “Thus, it cannot be doubted, particularly in view of the Constitution Bench decisions of this court that the words ‘Hinduism’ or ‘Hindutva’ are not necessarily to be understood and construed narrowly, confined only to the strict Hindu religious practices unrelated to the culture and ethos of the people of India, depicting the way of life of the Indian people. Unless the context of a speech indicates a contrary meaning or use, in the abstract these terms are indicative more of a way of life of the Indian people and are not confined merely to describe persons practising the Hindu religion as a faith.

“Considering the terms ‘Hinduism’ or ‘Hindutva’ per se as depicting hostility, enmity or intolerance towards other religious faiths or professing communalism, proceeds from an improper appreciation and perception of the true meaning of these expressions emerging from the detailed discussion in earlier authorities of this court. Misuse of these expressions to promote communalism cannot alter the true meaning of these terms.”

Hinduism is an ancient and tolerant faith. Hindutva represents modern hate. The term was admittedly “coined” anew to represent a political ideology of hate and its author painstakingly emphasised that it was not synonymous with Hinduism. Review and rejection of such a palpably wrong ruling is overdue. How many elections have we had since Justice J.S. Verma pronounced the law as he did on December 11, 1995? That was 18 years ago.

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